CDPA 1988 s.296ZB – Devices and services designed to circumvent technological measures

(1)A person commits an offence if he—

(a)manufactures for sale or hire, or

(b)imports otherwise than for his private and domestic use, or

(c)in the course of a business—

(i)sells or lets for hire, or

(ii)offers or exposes for sale or hire, or

(iii)advertises for sale or hire, or

(iv)possesses, or

(v)distributes, or

(d)distributes otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner,

any device, product or component which is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures.

(2)A person commits an offence if he provides, promotes, advertises or markets—

(a)in the course of a business, or

(b)otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner,

a service the purpose of which is to enable or facilitate the circumvention of effective technological measures.

(3)Subsections (1) and (2) do not make unlawful anything done by, or on behalf of, law enforcement agencies or any of the intelligence services—

(a)in the interests of national security; or

(b)for the purpose of the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution,

and in this subsection “intelligence services” has the meaning given in section 81 of the Regulation of Investigatory Powers Act 2000 .

(4)A person guilty of an offence under subsection (1) or (2) is liable—

(a)on summary conviction, to imprisonment for a term not exceeding three months, or to a fine not exceeding the statutory maximum, or both;

(b)on conviction on indictment to a fine or imprisonment for a term not exceeding two years, or both.

(5)It is a defence to any prosecution for an offence under this section for the defendant to prove that he did not know, and had no reasonable ground for believing, that—

(a)the device, product or component; or

(b)the service,

enabled or facilitated the circumvention of effective technological measures.

Cases considering section 296ZB 3

Gilham v R

[2009] EWCA Crim 2293 · 9 November 2009

The court upheld the offences for commercial dealing in modchips which facilitated circumvention of effective technological measures. Once substantial copying of protected artistic works was established, the appellant’s unchallenged statutory convictions stood (see paras [1]; [19]; [28]). Using commercial sale as an example, the court identified the elements the prosecution had to establish, including substantial copying and a device primarily designed to facilitate circumvention. The analysis supported the convictions (see paras [14]-[15]; [28]).

Higgs v R

[2008] EWCA Crim 1324 · 24 June 2008

The offence provision was applied by reference to the statutory definition of an effective technological measure. Because the Crown proved only a general commercial hindrance to piracy, the convictions under the section could not stand (see paras [1]; [35]-[36]). The court treated the device offence as depending on whether the modchips enabled circumvention of effective technological measures. That condition was not established on the prosecution case (see paras [6]; [35]-[36]). Cited only.

Bristol Groundschool Ltd v Intelligent Data Capture Ltd & Ors

[2014] EWHC 2145 (Ch) · 2 July 2014Limits

The court left open whether the patch was primarily produced for circumvention or primarily for technical support. It declined to determine the issue because criminality was not central to the parties’ case (see para [196](xi)).

What each judgment says about section 296ZB is in the case-law panel in the full Act.